118 U.S.

610
7 S.Ct. 25`
30 L.Ed. 274

Ex parte PHENIX INS. Co. OF BROOKLYN, N. Y., and

others, Petitioners.1
November 1, 1886.

On the fourteenth of January, 1886, the Goodrich Transportation

Company, a Wisconsin corporation, filed in the district court of the United
States for the Eastern district of Wisconsin a petition for a limitation of its
liability as owner of the steamer Oconto, claiming the benefit of the
provisions of sections 4283 and 4284 of the Revised Statutes. The
substantial matters set forth in the petition are these: The Oconto was on a
voyage from Chicago, Illinois, through Lake Michigan and Green bay, to
the city of Green Bay, in Wisconsin, which she approached by entering
the month of the Fox river. While she was passing up the river opposite
the city, on the twentieth of September, 1880, a fire broke out in a planingmill which the steamer had passed, and it spread to other buildings, about
67 being destroyed or injured, causing a damage of not less than $100,000
to the buildings and property in them. Such damage exceeds the value of
the steamer, and of her freight pending at the time of the fire; that value
being about $12,400. There was insurance against fire on some of the
buildings and property. The owners and insurers claimed that the fire was
negligently communicated to the planing-mill from the steamer, and that
the corporation was liable for all the loss and damage occasioned by the
fire. Some of the owners sued it in state courts in Wisconsin to recover
damages, by six suits, in which the Phenix Insurance Company, as insurer,
was joined as a co-plaintiff. One of those suits had been disposed of by a
judgment in favor of the corporation. In another a judgment against the
corporation, for $2,570 and costs, was rendered in March, 1885. An
appeal from it by the corporation to the supreme court of Wisconsin is
pending. The other four suits are pending. Other persons are threatening
to sue the corporation by like suits. It denies its liability for any loss or
damage occasioned by the fire, and insists that the fire did not originate
from, or was not negligently communicated from, the Oconto; but says
that, if it is so liable, the fire originated, and the losses and damages were
occasioned, without the privity or knowledge of the corporation; and that
it desires as well to contest its liability, and the liability of the vessel, for

such losses and damages, as also to claim the benefit of sections 4283 and
4284 of the Revised Statutes, and to limit its liability to the value of the
vessel and her freight then pending. It offers to enter into a stipulation,
with sureties, to pay into court the value of the vessel, and the amount of
her pending freight, whenever ordered so to do. The prayer of the petition
is for a decree that the corporation may have the benefit of such statutory
provisions; that the value of the vessel immediately after the fire, and the
amount of her freight then pending, be appraised; that the corporation
may enter into a stipulation to pay such value and amount into court when
required; that a monition issue for the proof of claims; that a
commissioner be designated before whom claims shall be presented, and
before whom the corporation may appear and contest said claims, and its
liability on account of any loss or damage occasioned by the fire; that, if it
shall appear that the corporation was not liable for any such loss or
damage, it may be so finally decreed, or, otherwise, that the moneys
secured by the stipulation be divided pro rata among the claimants; and
that the prosecution of all the suits be restrained.
On this petition an order to show cause, returnable February 1, 1886, was
made. The Phenix Insurance Company and the other plaintiffs in the five
pending suits filed an answer, setting forth that, with the exception of the
insurance company, they all were, and had been from before the fire,
citizens of Wisconsin; that the amount of the insurance the company had
made on the property covered by the five suits was $9,700; and that the
value of the property so insured and uninsured, belonging to the
respondents, and partly insured in the insurance company, amounted to
$28,000, with interest from the date of the loss. The answer also contains
these statements: The property burned was situated on the shore of Fox
river, wholly in the body of the city of Green Bay, and at a great distance
from any navigable stream or other waters within the jurisdiction of the
United States. The negligence of the owner of the steamer in not having
on her a contrivance to prevent the escape of sparks and fire from her
smoke-stack, and in starting her from her wharf with the exhaust on the
inside of her smoke-stack, within the city of Green Bay, caused the fire;
the shore being covered with dry wooden buildings, and a heavy wind
blowing across the course of the vessel towards the shore, and her smokestack throwing out large quantities of sparks, which were carried by the
wind onto the shore, and set fire to the planing-mill, from which the
flames spread to the other buildings and property. The suits were all of
them brought in the fall of 1880. The answer alleges that the court ought
not to take jurisdiction of the petition, because the liability, if any, accrued
by reason of a tort committed on the land to real estate in the body of a
county and a state, and not on any navigable waters of the United States;

and that the matters complained of are purely of common-law cognizance,

and of right triable by a jury, and not by a commissioner appointed under
the admiralty rules applicable to such proceedings.
The respondents moved to dismiss the petition for want of jurisdiction,
which motion was denied, and the court, on March 15, 1886, made an
order appointing appraisers to appraise the value of the steamer as it was
on September 20, 1880, with the value of her freight earned on the voyage
she was on.
The Phenix Insurance Company and the other plaintiffs in the five suits
now present to this court a petition for a writ of prohibition to the judge of
the district court, prohibiting him from proceeding to give the relief
prayed for in the petition of the owner of the vessel.
Mr. Robert Rae, for petitioner.
[Argument of Counsel from pages 613-616 intentionally omitted]
BLATCHFORD, J.

It is provided by section 688 of the Revised Statutes that this court 'shall have
power to issue writs of prohibition to the district courts when proceeding as
courts of admiralty and maritime jurisdiction.' This provision is taken from
section 13 of the act of September 24, 1879. 1 St. 80. The question to be
determined is, therefore, whether the district court has jurisdiction to entertain
the proceeding in this case for the limitation of liability. Sections 4283, 4284,
and 4285 of the Revised Statutes provide as follows:

'Sec. 4283. The liability of the owner of any vessel for any embezzlement, loss,
or destruction, by any person, of any property, goods, or merchandise shipped
or put on board of such vessel, or for any loss, damage, or injury by collision, or
for any act, matter, or thing, loss, damage, or forfeiture done, occasioned, or
incurred without the privity or knowledge of such owner or owners, shall in no
case exceed the amount or value of the interest of such owner in such vessle,
and her freight then pending.

'Sec. 4284. Whenever any such embezzlement, loss, or destruction is suffered

by several freighters or owners of goods, wares, merchandise, or any property
whatever, on the same voyage, and the whole value of the vessel, and her
freight for the voyage, is not sufficient to make compensation to each of them,
they shall receive compensation from the owner of the vessel in proportion to

their respective losses; and for that purpose the freighters and owners of the
property, and the owner of the vessel, or any of them, may take the appropriate
proceedings in any court for the purpose of apportioning the sum for which the
owner of the vessel may be liable among the parties entitled thereto.
4

'Sec. 4285. It shall be deemed a sufficient compliance on the part of such owner
with the requirements of this title relating to his liability for any embezzlement,
loss, or destruction of any property, goods, or merchandise, if he shall transfer
his interest in such vessel and freight, for the benefit of such claimants, to a
trustee, to be appointed by any court of competent jurisdiction to act as such
trustee for the person who may prove to be legally entitled thereto: from and
after which transfer all claims and proceedings against the owner shall cease.'

The claim to a limitation of liability in the present case is made under the
clause of section 4283 which provides that 'the liability of the owner of any
vessel' 'for any act, matter, or thing, loss, damage, or forfeiture done,
occasioned, or incurred, without the privity or knowledge of such owner or
owners, shall in no case exceed the amount or value of the interest of such
owner in such vessel, and her freight then pending.' That section does not
purport to confer any jurisdiction upon a district court. Section 4285, in
providing for the transfer to a trustee of the interest of the owner in the vessel
and freight, provides only that the trustee may 'be appointed by any court of
competent jurisdiction,' leaving the question of such competency to depend on
other provisions of law.

Nothing is clearer than that, by the express adjudication of this court, the
district ocurt, as a court of admiralty, would have no jurisdiction of a suit, either
in rem or in personam, by any one of the sufferers by the fire, to recover
damages from the vessel or her owner. It was so held in The Plymouth, 3 Wall.
20. In that case, a steam-vessel, anchored beside a wharf in the Chicago river,
in navigable water, took fire through the negligence of those in charge of her.
The flames spread to the wharf, and buildings upon it. Their owners used the
owners of the steam-vessel in personam, in the district court for the Northern
district of Illinois, in admiralty, for the damage. That court dismissed the libel
for want of jurisdiction, and the circuit court affirmed the decree. On appeal by
the libelant this court affirmed the decree of the circuit court. The argument in
favor of the jurisdiction is very fully given in the report. It was urged that the
vessel was a maritime thing; that the locality was maritime, because the vessel
was moored in navigable water; that the principal thing drew after it the
incident, although the damage was suffered on land; and that, under the 'rule of
locality,' 'that in cases of tort the jurisdiction depends on the locality of the act
done, and that it must be done on navigable water,' the locality of the act

'embraced the entire space occupied by the agent and the object, and the spatial
distance passed over by the causal influence in accomplishing the effect.' But
Mr. Justice NELSON, delivering the unanimous opinion of this court, said that
the true meaning of the rule of locality, in cases of marine torts, was that the
wrong must have been committed wholly on navigable waters, or, at least, the
substance and consummation of the same must have taken place upon those
waters, to be within the admiralty jurisdiction. In answer to the argument that
the vessel which communicated the fire was a maritime instrument, the court
said that the jurisdiction did not depend on the wrong having been committed
on board the vessel, but on its having been committed on navigable waters; and
that the substantial cause of action arising out of the wrong must be complete
within the locality on which the jurisdiction depended. It added, 'The remedy
for the injury belongs to the courts of common law.' Under this authoritative
decision, as the owners of the burned property could not sue originally in the
admiralty for their damages, it is impossible to see how, by the present form of
proceeding, the owner of the steamer can give to the admiralty court
jurisdiction to entertain the suits for the damage by a practical removal of them
into the admiralty court; for the petition of the owner of the vessel says that it
desires as well to contest its liability for the damage as to claim the benefit of a
limitation of liability, and it prays that it may be allowed to contest in the
admiralty courts its liability for the damage, and that, if it is not liable, there
may be a decree to that effect.
7

As there is no foundation in the general admiralty jurisdiction of the district

court for its assumption of jurisdiction in this case, and none in the special
provisions of the statute for the imitation of liability, it is sought to uphold the
jurisdiction under the rules in admiralty promulgated by this court in reference
to the limitation of liability. The provisions of the Revised Statutes on the
subject of the limitation of liability were taken from the act of March 3, 1851, 9
St. 635. There is nothing in that act, nor in the corresponding enactments in the
Revised Statutes, in regard to the promulgation of any rules by this court for
procedure in the matter. The rules it has made (Rules 54-57) are rules in
admiralty, promulgated May 6, 1872. 13 Wall. xiii. They were announced as
'supplementary rules of practice in admiralty under the act of March 3, 1851,
entitled 'An act to limit the liability of ship-owners, and for other purposes."
They are authoritatively embodied in, and numbered as part of, the 'rules of
practice for the courts of the United States in admiralty and maritime
jurisdiction, on the instance side of the court, in pursuance of the act of the
twenty-third of August, 1842, chapter 188.' The authority given to this court by
the act of 1842 was in section 6, (5 St. 518,) and was in these words: 'The
supreme court shall have full power and authority, from time to time, to
prescribe and regulate and alter the forms of writs and other process to be used

and issued in the district and circuit courts of the United States, and the forms
and modes of framing and filing libels, bills, answers, and other proceedings
and pleadings in suits at common law or in admiralty and equity pending in the
said courts, and also the forms and modes of taking and obtaining evidence, and
of obtaining discovery, and generally the forms and modes of proceeding to
obtain relief, and the forms and modes of drawing up, entering, and enrolling
decrees, and the forms and modes of proceeding before trustees appointed by
the court, and generally to regulate the whole practice of the said courts, so as
to prevent delays, and to promote brevity and succinctness in all pleadings and
proceedings therein, and to abolish all unnecessary costs and expenses in any
suit therein.'
8

These provisions, as applied to suits in admiralty in the district courts, are to be

found now, with some variations, in sections 862 and 917 of the Revised
Statutes. In section 862 it is enacted that 'the mode of process in causes' 'of
admiralty and maritime jurisdiction shall be according to rules now or hereafter
prescribed by the supreme court except as herein specially provided.' In section
917 the enactment is that 'the supreme court shall have power to prescribe, from
time to time, and in any manner not inconsistent with any law of the United
States, the forms of writs and other process, the modes of framing and filing
proceedings and pleadings, of taking and obtaining evidence, of obtaining
discovery, of proceeding to obtain relief, of drawing up, entering, and enrolling
decrees, and of proceeding before trustees appointed by the court, and generally
to regulate the whole practice to be used, in suits in equity or admiralty, by the
circuit and district courts.' The addition, in section 917, of the words 'in any
manner not inconsistent with any law of the United States,' not found in section
6 of the act of 1842, is worthy of note, as bearing on the construction of that
section, and of rules to be sustained under its provisions, though not implying
that any power existed, under the act of 1842, to make rules inconsistent with a
law of the United States. So, too, by section 913 of the Revised Statutes it is
enacted that 'the forms of mesne process, and the forms and modes of
proceeding in suits of equity and of admiralty and maritime jurisdiction, in the
circuit and district courts, shall be according to the principles, rules, and usages
which belong to courts of equity and admiralty, respectively, except when it is
otherwise provided by statute, or by rules of court made in pursuance thereof;
but the same shall be subject to alteration and addition by the said courts,
respectively, and to regulation by the supreme court, by rules prescribed, from
time to time, to any circuit or district court not inconsistent with the laws of the
United States.' These words 'not inconsistent with the laws of the United States'
are not found in the original statutory provisions from which section 913 was
taken. See Providence & N. Y. S. S. Co. v. Hill Manuf'g Co., 109 U. S. 578,
591-594; S. C. 3 Sup. Ct. Rep. 379, 617.

In view of the decision made by this court at December term, 1865, in the case
of The Plymouth, it is not to be presumed that the six of the judges upon the
bench when it was made who were also upon the bench when the Rules of May
6, 1872, were promulgated, intended that those rules should contain anything in
conflict with the decision in the case of The Plymouth; nor are those rules
capable of any such construction. They are in these words:

10

'Supplementary Rules of Practice in Admiralty, under the Act of March 3, 1851,

entitled 'An Act to Limit the Liability of Ship-owners, and for Other Purposes.'

11

'54. When any ship or vessel shall be libeled, or the owner or owners thereof
shall be sued, for any embezzlement, loss, or destruction by the master,
officers, mariners, passengers, or any other person or persons, of any property,
goods, or merchandise shipped or put on board of such ship or vessel, or for any
loss, damage, or injury by collision, or for any act, matter, or thing, loss,
damage, or forfeiture done, occasioned, or incurred, without the privity or
knowledge of such owner or owners, and he or they shall desire to claim the
benefit of limitation of liability provided for in the third and fourth sections of
the said act above recited, the said owner or owners shall and may file a libel or
petition in the proper district court of the United States, as hereinafter specified,
setting forth the facts and circumstances on which such limitation of liability is
claimed, and praying proper relief in that behalf; and thereupon said court,
having caused due appraisement to be had of the amount or value of the interest
of said owner or owners, respectively, in such ship or vessel, and her freight, for
the voyage, shall make an order for the payment of the same into court, or for
the giving of a stipulation, with sureties, for payment thereof into court
whenever the same shall be ordered; or, if the said owner or owners shall so
elect, the said court shall, without such appraisement, make an order for the
transfer, by him or them, of his or their interest in such vessel and freight, to a
trustee to be appointed by the court under the fourth section of said act; and,
upon compliance with such order, the said court shall issue a monition against
all persons claiming damages for any such embezzlement, loss, destruction,
damage, or injury, citing them to appear before the said court, and make due
proof of their respective claims at or before a certain time to be named in said
writ, not less than three months from the issuing of the same; and public notice
of such monition shall be given as in other cases, and such further notice served
through the post-office or otherwise, as the court, in its discretion, may direct;
and the said court shall also, on the application of the said owner or owners,
make an order to restrain the further prosecution of all and any suit or suits
against said owner or owners in respect of any such claim or claims.

12

'55. Proof of all claims which shall be presented in pursuance of said monition

shall be made before a commissioner, to be designated by the court, subject to

the right of any person interested to question or controvert the same; and, upon
the completion of said proofs, the commissioner shall make report of the claims
so proven, and upon confirmation of said report, after hearing any exceptions
thereto, the moneys paid or secured to be paid into court as aforesaid, or the
proceeds of said ship or vessel and freight, (after payment of costs and
expense,) shall be divided pro rata among the several claimants in proportion
to the amount of their respective claims, duly proved and confirmed as
aforesaid, saving, however, to all parties any priority to which they may be
legally entitled.
13

'56. In the proceedings aforesaid the said owner or owners shall be at liberty to
contest his or their liability, or the liability of said ship or vessel for said
embezzlement, loss, destruction, damage, or injury, (independently of the
limitation of liability claimed under said act,) provided that, in his or their libel
or petition, he or they shall state the facts and circumstances by reason of which
exemption from liability is claimed; and any person or persons claiming
damages as aforesaid, and who shall have presented his or their claim to the
commissioner under oath, shall and may answer such libel or petition, and
contest the right of the owner or owners of said ship or vessel either to an
exemption from liability, or to a limitation of liability under the said act of
congress, or both.

14

'57. The said libel or petition shall be filed, and the said proceedings had, in any
district court of the United States in which said ship or vessel may be libeled to
answer for any such embezzlement, loss, destruction, damage, or injury; or, if
the said ship or vessel be not libeled, then in the district court for any district in
which the said owner or owners may be sued in that behalf. If the ship have
already been libeled and sold, the proceeds shall represent the same for the
purposes of these rules.'

15

There is nothing in any of these rules which purports to enlarge the jurisdiction
of the district courts of the United States as to subject-matter. On the contrary,
they exclude any such construction, and leave that jurisdiction in admiralty
within the bounds set for it by the constitution and statutes, and the judicial
decisions under them. Rule 54 provides that when a vessel is libeled, or her
owner is sued, he may file a libel or petition for a limitation of liability 'in the
proper district court of the United States, as hereinafter specified.' Rule 56
provides that in the proceeding the owner may contest his liability, or that of
the vessel, independently of the limitation of liability claimed, and that the
opposing party may contest the right of the owner either to an exemption from
liability or to a limitation of liability. What is the 'proper district court' referred

to in rule 54 and contemplated by rule 56? It is the court, and only the court,
mentioned in rule 57, namely, the district court in which the vessel is libeled,
or, if she is not libeled, then the district court for any district in which the
owner 'may be sued in that behalf.' There is nothing in these rules which
sanctions the taking of jurisdiction by a district court on a petition under the
rules, where that court could not have had original cognizance in admiralty of a
suit in rem or in personam to recover for the loss or damage involved.
16

Nor do we find anything in any of the decisions of this court on the subject of
the limitation of liability which supports the view that district court can take
jurisdiction in admiralty of a petition for a limitation of liability where it would
not have had cognizance in admiralty originally of the cause of action involved.
In Norwich Co. v. Wright, 13 Wall. 104, the case which furnished the occasion
for the making of the rules, and which came before this court again in The City
of Norwich, 118 U. S. 468, S. C. 6 Sup. Ct. Rep. 1150, the damage was
occasioned by a collision on navigable water between two vessels, and a fire
resulting from it on board of one of them. In all the other cases in which this
court has upheld proceedings for limitation in a district court, there was original
admiralty jurisdiction of the cause of action. In The Benefactor, 103 U. S. 239,
the cause of damage was a collision on the high seas, and the petition for
limitation was filed in the same district court in which the offending vessel was
libeled. In The Scotland, 105 U. S. 25, S. C. 118 U. S. 507, and 6 Sup. Ct. Rep.
1174, there was a like cause of action, and the limitation was claimed by an
answer to a libel in personam in a district court. In Ex parte Slayton, 105 U. S.
451, the petition for limitation was filed in a district court, by the owner of a
vessel which had foundered, to limit his liability for the loss of goods carried,
and for damage to another vessel by a prior collision, he not having been first
sued. He transferred to a trustee appointed by the court his interest in the vessel,
and in the freight pending. See The Alpena, 10 Biss. 436. 1 This court, being
applied to for a writ of prohibition, refused to grant it. It held that the owner of
a vessel may, before he is sued, institute appropriate proceedings in a court of
competent jurisdiction to obtain a limitation of liability; that the words 'any
court,' in section 4284, mean 'any court of competent jurisdiction;' and that as
the transfer had been made and the freight money paid over to the trustee, the
district court had jurisdiction to apportion the fund. But it is to be noted that the
causes of action were in fact of admiralty jurisdiction. In Providence & N. Y. S.
S. Co. v. Hill Manuf'g Co., 109 U. S. 578, S. C. 3 Sup. Ct. Rep. 379, 617, the
cause of action was a loss, by the burning of a vessel, of goods carried by her,
and the petition for limitation was filed in the district court of the district where
the fire occurred. and where the remanants of the vessel remained, and the
contract of affreightment was of admiralty cognizance. In The Great Western,
118 U. S. 520, S. C. 6 Ct. Rep. 1172, the cause of damage was a collision on

the high seas, and the claim of limitation was made in the answer in a suit in
personam in a district court in admiralty to recover for the damage.
17

We are brought, therefore, to the conclusion that there is nothing in the

admiralty rules prescribed by this court which warrants the jurisdiction of the
district court in the present case.

18

Our decision against the jurisdiction of the district court is made without
deciding whether or not the statutory limitation of liability extends to the
damages sustained by the fire in question so as to be enforceable in an
appropriate court of competent jurisdiction. The decision of that question is
unnecessary for the disposition of this case.

19

It is contended that the mistake of the district court must be corrected by

appeal, and that the case is not one for a writ of prohibition. Where the case is
within admiralty cognizance, the district court may decide whether the party is
entitled to the benefit of the statute, and a writ of prohibition will not lie. But
where, as here, the tort is not a maritime tort, there can be no jurisdiction in the
admiralty to determine the issue of liability, or that of limitation of liability.
This court refused a writ of prohibition where a suit in rem was brought against
a vessel, in admiralty, in a district court, to enforce an alleged lien for wharfage,
on the ground that a contract for the use of a wharf by a vessel was a maritime
contract, and cognizable in the admiralty, and that, as a lien arose in certain
cases, the admiralty court was competent to decide in the given case whether
there was a lien. Ex parte Easton, 95 U. S. 68. So also, a writ of prohibition
was refused where a suit in admiralty was brought, in a district court, to recover
damages for the loss of life by a collision between two vessels, on the ground
that damages from collision were within admiralty jurisdiction, and the
admiralty court could, therefore, lawfully decide whether such damages
embraced damages for the loss of life. Ex parte Gordon, 104 U. S. 515. But in
the present case the district court is called upon by the petition of the owner of
the vessel, to first determine the question of any liability when it has no
jurisdiction of the cause of action, and then to determine whether the statute
covers the case.

20

The case is clearly one for a writ of prohibition, as the want of jurisdiction
appears on the face of the proceedings. U. S. v. Peters, 3 Dall. 121.

21

A writ of prohibition will issue.

S. C. 26 Fed. Rep. 713.

1
1

S. C. 26 Fed. Rep. 713.

8 Fed. Rep. 280.